(Reuters) – In an attempt to avoid further claims, Bayer AG is riskingly betting that an independent scientific review will finally prove that its widely used herbicide Roundup does not cause cancer, legal experts said.
The company agreed on Wednesday to pay up to $ 10.9 billion to end litigation for Roundup users in the United States who say the herbicide caused them to develop a form of blood cancer.
But Bayer had to find a separate solution to mitigate the risk of future claims without taking the product off the shelves. The company decided to make a calculated bet on the scientific evidence that has so far overwhelmingly supported its claim that glyphosate, the active ingredient in Roundup, is safe for agricultural use.
Regulators around the world, including the US Environmental Protection Agency and the European Chemicals Agency, have determined that glyphosate is not carcinogenic.
But the cancer research arm of the World Health Organization determined that the herbicide was a “probable carcinogen” in 2015, and since 2018, three consecutive US juries, who heard scientific evidence from both sides during the trial, found that Roundup causes Cancer.
“Bayer is taking a huge risk in doing this and it is a gamble that time can show that the science behind the plaintiffs’ claims is bad,” said David Noll, a law professor at Rutgers University.
While many details of the proposal have not yet been released by Bayer and approved by a federal judge, the plan requires an independent panel of scientific experts, who will likely be chosen and agreed by both parties.
The company will pay $ 1.25 billion to support the panel’s investigation, an amount that does not include any payments to resolve future lawsuits.
The scientific review process is expected to take at least four years, and the panel’s findings would be binding on Bayer and anyone who has used Roundup before Wednesday but has not developed cancer.
If the panel finds that glyphosate is not carcinogenic, those users could not sue.
However, if the panel determines that glyphosate causes cancer, Bayer could face an avalanche of new lawsuits, with potential damages determined at a later stage. Bayer said on Wednesday that the plaintiffs’ top lawyers accepted their plans, but Reuters was not immediately able to contact those lawyers for comment.
Lawyers for Roundup’s cancer plaintiffs in the past alleged that Bayer manipulated scientific studies and misled the scientific community, Bayer denies.
Company executives in calls with reporters and analysts on Wednesday repeatedly said that science was in their favor.
“We are confident that the scientific panel will examine the body of scientific evidence and conclude that glyphosate is safe,” said Bayer’s head of global litigation, Bill Dodero.
Scientific panels have been established in previous mass trials, but generally not as part of a settlement process, legal experts said. Bayer’s proposal was “creative but risky” and will likely face procedural challenges in court, said Adam Zimmerman, a professor at Loyola Law School.
Experts said many details, including how people who have not yet become ill could give up their rights to a future lawsuit under the proposal, were unclear.
(This story corrects the second paragraph to reflect that $ 10.9 billion is the total settlement amount, not just the amount paid to settle 75% of cases)
Report by Tina Bellon; Edition by Cynthia Osterman